Ehrmann Mfg. Co. v. Carroll & Sons

• Decision Date: 01 November 1927
• Docket Number: 4 Div. 300
• Citation: 114 So. 275,22 Ala.App. 217
• Court: Alabama Court of Appeals
• Parties: EHRMANN MFG. CO. v. CARROLL & SONS.

114 So. 275

22 Ala.App. 217

EHRMANN MFG. CO. v. CARROLL & SONS.

4 Div. 300

Court of Appeals of Alabama

November 1, 1927

Appeal from Circuit Court, Dale County; J.S. Williams, Judge.

Action on account by the Ehrmann Manufacturing Company against Carroll & Sons. From a judgment over for defendants plaintiff appeals. Affirmed.

See also, 214 Ala. 6, 106 So. 165.

O.S Lewis, of Dothan, for appellant.

Riley & Stokes and Sollie & Sollie; all of Ozark, for appellees.

RICE J.

Appellee's motion to dismiss this appeal, being based upon matters in existence at the time of submission of the appeal upon its merits in this court, and being made some 20 days subsequent to the date of such submission, and after appellees had filed their briefs in this court, comes too late, and will be disregarded.

It may not be out of place, though, to say that rule 43 of the Supreme Court (Code 1923, p. 893) provides that the certificate of appeal therein mentioned shall be made out and forwarded to the clerk of this court "when a party to a civil case has executed, had approved, and filed his security for costs or an appeal bond," etc. The certificate of appeal in this case was duly filed in this court on December 10, 1926, reciting that the necessary steps for perfecting the appeal had been taken by appellant within the time required by law. In the absence of a showing to the contrary, we will assume that the recitals in this certificate are true. Millican v. Livingston et al., 207 Ala. 689, 93 So. 620. And the transcript need not contain a duplication of such recitals. Id. So, in any event, the motion to dismiss the appeal must fail.

This case has been here on appeal once before, when it was transferred to the Supreme Court. The report of the decision of that court reversing the judgment of the lower court (214 Ala. 6, 106 So. 165), gives a sufficient statement of the facts involved. On the second trial, from the judgment in which this appeal is taken, the verdict of the jury was similar to that on the first.

Perhaps the strongest insistence of appellant on this appeal is that we should reverse the judgment appealed from on substantially the same ground laid for the reversal on the first appeal i.e., that defendant in the court below, appellee here, failed as matter of law to establish the breach by the plaintiff of an existing binding contract with the plaintiff as of the date of January 18, 1918, to ship certain garments therein mentioned to defendant. In the opinion by the Supreme Court, supra, the particular defect or item of failure in defendant's testimony, causing it to fall short of being legally sufficient to discharge the burden resting upon defendant to show a breach of this contract, was pointed out as being the failure of the said testimony to show an acceptance by the plaintiff of the terms of said contract, or order to ship certain goods--the contract or order showing...